Right Thinking From The Left Coast
Reality is merely an illusion, albeit a very persistent one. - Albert Einstein

Law Of The Land

Publius responds to George Will’s claim that what Obama is doing is unconstitutional.

There are at least two interesting aspects of Will’s column. First, it reminds us why it’s always important to understand the logical implications of Will’s (and his ideological comrades’) seemingly innocent legal arguments. The column sounds reasonable enough on first read. The EESA, Will argues, is too broad, and it gives the executive too much power. Fair enough.

However, the doctrine that Will wants to use to kill the EESA would have the added benefit of effectively destroying the post-New Deal administrative state. It’s always the New Deal with these people.

Today, the doctrine is essentially toothless—and hasn’t been used to invalidate a statute since the New Deal. (Good short summary on the doctrine here). But for decades, the more extreme elements of the legal conservative world have been trying to revive it from the dead. As the summary above indicates, both Thomas and Rehnquist have tried—but no such luck thus far.
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The second interesting aspect of the column is that it illustrates the tension—if not schizophrenia—in conservative legal thought with respect to deference to the political branches.

On the one hand, the rise of “the movement” was inspired by the view that liberals had circumvented the legislature. People like Bork argued that, because liberals can’t win things like abortion rights at the ballot box, they politicized the Constitution and imposed their preferences into its text. So this strain of conservative thought emphasizes the political process.

At the same time, however, there’s a deeply anti-democratic strain running through legal conservatism as well. As illustrated by Will and Lawson, this strain wants to ignore the political branches entirely and invalidate big pieces of the regulatory state. (Thomas is the most extreme on this issue—Roberts and Alito have been much more respectful of precedent).

In short, legal conservatives like Will can’t make up their mind about whether they like the ballot box. For instance, in yesterday’s column, Will offers a hypothetical about a truly absurd and vague statute (the Goodness and Niceness Act) that would delegate a lot of undefined power to the executive.

And yes, I would disagree with that statute—but that doesn’t mean it’s necessarily unconstitutional. The political branches play a role here too in protecting us from such absurd statutes. We don’t necessarily have to rely on courts for protection from this terrible statute. One would hope that this bill wouldn’t make it very far.

Anyway, the point is that Will’s example shows virtually no faith in the political process—the glorification of which is, ironically enough, the raison d’etre of the modern conservative movement.

I think a lot of otherwise smart people have allowed their emotions to get in the way of their judgement of the bailout. It’s big, it’s messy, and there is plenty about it to criticize. But doing things like calling it unconstitutional when you should know better is the mark of intellectual dishonesty. Coming at the bailout from an ideological rather than a pragmatic opposition will only help Obama. The law, whether we like it or not, is on his side here.

Posted by West Virginia Rebel on 03/30/09 at 05:57 PM (Discuss this in the forums)

Comments


Posted by on 03/30/09 at 07:42 PM from United States

WVR, do you consider yourself a conservative?

Posted by Hal_10000 on 03/30/09 at 07:48 PM from United States

I think Publius doesn’t understand how the Constitution works.  The idea is that all three branches of the government have to agree in order for something to happen.  Congress proposes legislation but only if it believes it passes Constitutional muster; the President executes the law within the Constitution and the Supreme Court judges the law.  If any party says “no!”, it can not be done.

The President isn’t supposed to have broad discretionary powers.

The judiciary isn’t supposed to be able to rewrite laws—although the have plenty of authority to toss them.

Publius doesn’t seem to understand that there’s a whopin difference between the Courts invalidating laws because they violate the Constitution and engaging in wholesale rewriting of the Consitution for political ends.

Posted by josparke on 03/30/09 at 08:44 PM from United States

Some people (because we can’t call you “otherwise smart” allow their blind awe of the cult of personality that is The O to get in the way of their judgment of the bailouts. Then they constantly post intellectually dishonest crap like this.

I guess the “Pragmatic” position is to ignore the constitution altogether. Sorry… but he took an oath to “uphold and defend” it, no matter what winds blew. If he can’t, it’s impeachment time, buddy.

The writers of the constitution would S#!t a brick if they saw the President “Fire” the CEO of a private enterprise.

Posted by HARLEY on 03/30/09 at 09:14 PM from United States

The writers of the constitution would S#!t a brick if they saw the President “Fire” the CEO of a private enterprise.

Lets be honest.
If the Founding Fathers could have seen what has happened in the last 60 years with the federal government, they would not be shitting bricks, they would be pulling g out the guns.

I dare anyone of you to counter that statement.

Posted by on 03/30/09 at 09:17 PM from United States

I think a lot of otherwise smart people have allowed their emotions to get in the way of their judgement of the bailout. It’s big, it’s messy, and there is plenty about it to criticize. But doing things like calling it unconstitutional when you should know better is the mark of intellectual dishonesty

WVR, cite the clause of the Constitution that allows it.  Before you do that read the tenth Amendment.

Posted by HARLEY on 03/30/09 at 09:35 PM from United States

WVR, cite the clause of the Constitution that allows it.  Before you do that read the tenth Amendment.

he cant, why because it a power NOT GIVEN to the fed Gov!
Posted by josparke on 03/30/09 at 09:57 PM from United States

Oh, and if we’re going to hold “sphincter” WVR to his same standard as he holds others like Cheney and Petraus…

OMG!!! Hal’s *SMACKDOWN* of WVR!!! BLOGGER FUED CRIPPLES RT AS HAL GETS TIRED OF AND PISSED OFF AND TRASHES HIS REALITY CHALLENGED COBLOGGER!!! Catfight hits comments stream! Will RT survive Hal’s rage after “sphincter” WVR’s posts finally break the camel’s back!? WVR is an ass anyway!

Posted by West Virginia Rebel on 03/30/09 at 10:11 PM from United States

It would seem that the Founding Fathers left some wiggle room in the Tenth Amendment, in that it gives Congress powers that aren’t explicitly prohibited by the other amendments. The courts have regularly sided with the broader interpretation of the Tenth Amendment. Therefore, in the eyes of the law, what Congress did in passing the Amendment, since they control spending, was constitutional.

Posted by HARLEY on 03/30/09 at 10:25 PM from United States

t would seem that the Founding Fathers left some wiggle room in the Tenth Amendment, in that it gives Congress powers that aren’t explicitly prohibited by the other amendments.


wiggle room, not WAGGLE room. This is Far and away what they intended, but i dont expect you to see that.
teh road to this has been paved my every preceding administration. One morning we are gonna wake up in a nation taht ..... well lets put it this way, they might as well run the hammer in cyscle up the pole....
Posted by josparke on 03/30/09 at 10:33 PM from United States

Check out the pic at the top.

http://tinyurl.com/dxxzal

Their complaint is that Obama isn’t doing it fast or viciously enough.

Posted by Hal_10000 on 03/31/09 at 12:39 AM from United States

It would seem that the Founding Fathers left some wiggle room in the Tenth Amendment, in that it gives Congress powers that aren’t explicitly prohibited by the other amendments

My reading of the 10th A is quite the opposite:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This is intended to be a general clause of rights—i.e., the Bill of Rights is not an exclusive list of the people’s liberties, and a limit on Congress’s power.  That some people have taken the plain language and interpreted it in the opposite direction does not make it right.

Posted by on 03/31/09 at 06:53 AM from United States

It would seem WVR is beyond his depth and doesn’t know what he’s talking about anymore.

But go ahead and keep spouting your brainless pro obama blather.

This is yet another great example of why kids shouldn’t abuse mind altering substances.

Posted by on 03/31/09 at 10:05 AM from United States
It would seem that the Founding Fathers left some wiggle room in the Tenth Amendment, in that it gives Congress powers that aren’t explicitly prohibited by the other amendments. quote]

This is simply full of shit.  I’ll repeat Hal’s quote: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

How the fuck does anyone but a congenital idiot get that this means “in that it gives Congress powers that aren’t explicitly prohibited by the other amendments.”? 

So WVR according to your legal theory, if something is not explicitly banned by the Constitution then Congress gets to do it? 

I haven’t joined the chorus asking why you considerer yourself qualified to post on a purportedly conservative blog, but that is the least conservative legal theory this blog has ever seen.  Even liberal members of the Supreme Court try to dress up their power grabs with references to the Commerce Clause-name a single member of the Supreme Court that has openly endorsed your theory of the tenth amendment.  I bet not even Ginsberg would agree openly.

Posted by on 04/03/09 at 09:49 AM from United States

It would seem that the Founding Fathers left some wiggle room in the Tenth Amendment, in that it gives Congress powers that aren’t explicitly prohibited by the other amendments. quote]

This is simply full of shit.  I’ll repeat Hal’s quote: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

How the fuck does anyone but a congenital idiot get that this means “in that it gives Congress powers that aren’t explicitly prohibited by the other amendments.”? 

So WVR according to your legal theory, if something is not explicitly banned by the Constitution then Congress gets to do it? 

I haven’t joined the chorus asking why you considerer yourself qualified to post on a purportedly conservative blog, but that is the least conservative legal theory this blog has ever seen.  Even liberal members of the Supreme Court try to dress up their power grabs with references to the Commerce Clause-name a single member of the Supreme Court that has openly endorsed your theory of the tenth amendment.  I bet not even Ginsberg would agree openly.

HEY WVR I thouight I’d boost this one back on top of the comment list-care to answer any of the questions?

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